Explain Difficulty In Releasing Feeding Tubes; Bombay HC Asks Customs About Withholding Imported Feeding Tubes For Cancer Survivor [Read Order]

first_imgNews UpdatesExplain Difficulty In Releasing Feeding Tubes; Bombay HC Asks Customs About Withholding Imported Feeding Tubes For Cancer Survivor [Read Order] Nitish Kashyap17 Jun 2020 1:16 AMShare This – xThe Bombay High Court on Tuesday enquired from the Commissioner of Customs about the difficulty in releasing feeding tubes imported from the United States for a cancer survivor who is unable to eat without them due to a surgery he underwent. Division bench of Justice SJ Kathawalla and Justice NR Borkar via video conferencing were hearing a writ petition filed by Samir Patel, a…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Bombay High Court on Tuesday enquired from the Commissioner of Customs about the difficulty in releasing feeding tubes imported from the United States for a cancer survivor who is unable to eat without them due to a surgery he underwent. Division bench of Justice SJ Kathawalla and Justice NR Borkar via video conferencing were hearing a writ petition filed by Samir Patel, a cancer survivor who sought relief of release of feeding tubes imported from the USA, withheld by the Assistant Commissioner of Customs. In December 2016, the petitioner was diagnosed with oral cancer and due to remedial surgical operations, his intake of food/nutrients is only possible through a feeding tube. The feeding tubes are required to be imported from time to time from the USA. The petitioner has imported four boxes of such feeding tubes labelled “Osmolite Nutrio N-Food for Tube Feeding Patient” from the US through the DHL Courier Agency. The Assistant Commissioner of Customs, Air Cargo Complex, Sahar, Andheri (E), Mumbai however withheld the said packets on grounds unclear to the petitioner. The petitioner contended that the said feeding tubes are not available in India and there is also no alternative available. Moreover, the petitioner has a stock of the feeding tubes which will last only for a very few days. Thus, Court observed- “In view thereof, Respondents shall remain present before this Court on 18th June, 2020 by themselves and/or through their Advocates and explain the difficulty in releasing the packets containing feeding tubes.” Court directed the registry to forward a copy of the said order to Senior Advocate Pradeep Jetly who usually appears in customs cases. The next date of hearing is June 18 at 11 am.Click Here To Download Order[Read Order]Next Storylast_img read more

[Read Judgment] Daughters Have Coparcenery Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act, 2005 Came Into Force: SC

first_imgTop Stories[Read Judgment] Daughters Have Coparcenery Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act, 2005 Came Into Force: SC LIVELAW NEWS NETWORK10 Aug 2020 11:22 PMShare This – xIn a significant judgment, the Supreme Court has held that, a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginIn a significant judgment, the Supreme Court has held that, a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, has a retrospective effect? “Daughters must be given equal rights as sons, Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not”, Justice Mishra said while pronouncing the judgment today. The bench also comprising of Justices S. Abdul Nazeer and MR Shah, overruled the contrary observations made in in Prakash v. Phulavati and Mangammal v. T.B. Raju. The court held as follows:The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class ­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.Read In-depth analysis of the judgment here : Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005  BackgroundThese cases were heard by a three judge bench as one of them arose out of a judgment delivered by Delhi High Court which had also granted certificate to appeal. The High Court has noticed that there is a conflict of opinion between Prakash vs. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur vs. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005. However, the High Court followed the judgment in Prakash V. Phulavati and held, in facts of this case, that, the amendments of 2005 do not benefit the plaintiff as her father passed away on 11th December 1999.Section 6 provides that, on and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right the same manner as the son (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The proviso to Section 6 clarifies that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.In Prakash V. Phulavati (2015), the Supreme Court bench comprising Justices Anil R. Dave and A.K. Goel had held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born. It was held that, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. This position was reiterated by the bench of Justices R.K. Agrawal and A.M. Sapre in Mangammal vs. T.B. Raju (2018).In the case of Danamma @ Suman Surpur vs. Amar (2018), the bench comprising Justices A.K. Sikri and Ashok Bhushan had held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to share in the property. “Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized.”, it was observed in the said judgment.Case name: VINEETA SHARMA vs. RAKESH SHARMA Case no.: CIVIL APPEAL NO. DIARY NO.32601 OF 2018 Coram: Justices Arun Mishra, S. Abdul Nazeer and MR Shah Click here to Read/Download JudgmentRead Judgment Next Storylast_img read more